Introduction

The Case Law Database (“CLD”) is a gateway to the jurisprudence of the ICTR, ICTY, and IRMCT Appeals Chambers.

It provides direct access to extracts of key judgements and decisions rendered by the ICTR, ICTY, and IRMCT Appeals Chambers since their inception, as well as to full-text versions of the corresponding appeal judgements and decisions.

Users can conduct quick searches by notions, cases names, titles of filings, date (in year-month-day format), statutes, rules, and other instruments through the “Basic Search” page. In addition, refined searches in all fields of the database can be conducted through the “Advanced Search” feature.

Please note that the CLD does not include confidential decisions and restatements of established case law and does not necessarily contain all notable rulings by the Appeals Chambers of the ICTR, the ICTY, and the IRMCT. For exact numbering of footnotes, refer to full documents.

The CLD is a living tool and its content is being regularly updated. Please help us improve the service by using our feedback form.

Help

Browse the list of legal notion titles using the A-Z index. Click on the notion to show the page containing relevant case law extracts.

Submit Feedback

Please help us improve the service.

You can send ideas to marshague at un dot org

Thank you very much for your help.

Double jeopardy

32. […] Since the Trial Chamber may not make findings with respect to Haradinaj’s responsibility beyond those in the six counts alleged, the Appeals Chamber finds […] that consideration of the broader JCE in the context of the partial retrial does not place him in potential double jeopardy or otherwise affect his fundamental rights and interests.

39. Since the Trial Chamber cannot make findings with respect to Haradinaj’s criminal responsibility beyond that alleged in the six counts which are the subject of the retrial, the Appeals Chamber considers […] that the inclusion of the […] general allegations in the “Statement of Facts” of the Operative Indictment does not expose Haradinaj to any additional charges or render the retrial unfair per se.[1]

40. It will be for the Trial Chamber, applying the normal rules of admissibility of evidence, to assess the relevance and probative value of evidence proffered by the Prosecution in relation to such general allegations, and to decide if consideration of such evidence would unduly prejudice Haradinaj in the context of retrial following acquittal.

Judge Robinson appended a partially dissenting opinion on the issue of double jeopardy.

[1] The Appeals Chamber notes that in the Muvunyi retrial, the Indictment from the original trial remained the operative indictment for the retrial without any amendment, despite the fact that at trial Muvunyi had been acquitted of one charge and another charge had been dismissed. See The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-I, Indictment, 23 December 2003; TheProsecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-T, Judgement and Sentence, signed on 12 September 2006 and filed on 18 September 2006, para. 531; TheProsecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-T, Judgement, 11 February 2010, para. 2, fn. 3.

74. Article 9 of the Statute of the Tribunal sets forth the principle of non bis in idem. The Appeals Chamber accepts the interpretation of this Article and Article 10 of the Statute of ICTY[1] given by various Trial Chambers of the international criminal Tribunals whereby:

- Article 9 (2) of the Statute sets a limit on the extent to which the Tribunal can prosecute persons who have been tried by a national Court for acts constituting serious violations of international humanitarian law;[2]

- The non bis in idem principle applies only where a person has effectively already been tried. The term "tried" implies that proceedings in the national Court constituted a trial[3] for the acts covered by the indictment brought against the Accused by the Tribunal[4] and at the end of which trial a final judgement is rendered.[5]

[1] These provisions of the ICTY and ICTR Statutes are identical for all practical purposes. Moreover, the non bis in idem principle is set out in paragraph 7 of Article 14 of the International Covenant on Civil and Political Rights in the following terms: "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country".

[2] Case No. ICTR-96-7-D, The Prosecutor v. Thenoeste Bagosora, "Decision on the Application by the Prosecutor for a Formal Request for Deferral", Trial Chamber I, 17 May 1996, para. 13: "Article 9.2 of the Tribunal’s Statute, concerning the principle of non bis in idem, sets limits to the subsequent prosecution by the Tribunal of persons who have been tried by a national Court for acts constituting serious violations of international humanitarian law". See also Case No. ICTR-96-5-D, The Prosecutor v. Musema, "Decisions on the Formal Request for Deferral Presented by the Prosecutor", Trial Chamber I, 12 March 1996, para. 12.

[4] "[…] There can be no violation of non bis in idem, under any known formulation of that principle, unless the accused has already been tried. Since the accused has not yet been the subject of a judgement on the merits on any of the charges for which he has been indicted, he has not yet been tried for those charges. As a result, the principle of non bis in idem does not bar his trial before this Tribunal" (ibid., para. 24.)

6. […] The Appeals Chamber observes that the Rules do not expressly provide for an appeal as of right from a decision of a trial chamber or a single judge applying the non bis in idem principle set out in Article 7 of the Statute and Rule 16 of the Rules.[1] Notwithstanding, Article 7(1) of the Statute prescribes that “[n]o person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the ICTY, the ICTR or the Mechanism” and Rule 16 of the Rules provides for a remedy in the event of a violation of this principle. The Appeals Chamber considers that, in order to give full effect to the statutory principle of non bis in idem, it is necessary to recognize that decisions by a trial chamber or a single judge that affect a party’s rightto the protections afforded in Article 7 of the Statute and Rule 16 of the Rules are subject to appellate review as of right.[2] […]

11. The Appeals Chamber observes that, in the Impugned Decision, the Single Judge compared the acts on the basis of which Orić was charged and tried before the ICTY with the acts for which he is charged in Bosnia and Herzegovina and concluded that these acts differ fundamentally with respect to the alleged victims and the nature, time, and location of the alleged criminal conduct. […] The Appeals Chamber finds that […] Orić fails to demonstrate that the Single Judge incorrectly interpreted the governing law. The ICTR Appeals Chamber’s discussion [of non bis in idem] in Ntakirutimana [referenced by the Single Judge]is consistent with the clear language of the Statute and relevant jurisprudence holding that a defendant shall not be tried before a national jurisdiction for the same acts on the basis of which he has already been tried before the relevant international jurisdiction.[1]

[…]

13. Similarly unpersuasive is Orić’s contention that the Single Judge erred in dismissing his abuse of process argument because the allegations in the case against him in Bosnia and Herzegovina concern matters of which the ICTY Prosecutor was aware. The Appeals Chamber considers that nothing in Article 7(1) of the Statute prohibits prosecutions in national jurisdictions in such circumstances. Rather, Article 7(1) of the Statute stipulates that a person cannot be tried in a national jurisdiction for acts for which he was already tried in the relevant international jurisdiction. It expressly refers to acts on the basis of which the person was tried, in the sense that a final judgment was rendered,[2] not circumstances in which certain acts may have been investigated but upon which the person concerned was not tried. […]

[1] See, e.g., Laurent Semanza v. The Prosecutor, Case No. ICTR-97-23-A, Decision, dated 31 May 2000, filed 4 July 2001 (“Semanza Decision”), para. 74 (noting that the “non bis in idem principle applies only where a person has effectively been ‘tried’’’ and that the “term ‘tried’ implies that proceedings in the national Court constituted a trial for acts covered by the indictment brought against the Accused by the Tribunal”) (first emphasis in original; second emphasis added). See alsoProsecutor v. Miroslav Deronjić, Case No. IT-02-61-S, Sentencing Judgement, 30 March 2004, para. 31 (observing that the plea agreement only concerned crimes committed “during the attack in Glogova” and noting that the accused “can still be indicted for all other possible crimes which he might have been involved, including, e.g. Srebrenica, before [the ICTY] or in other countries which have jurisdiction as well”); Prosecutor v. Duško Tadić a/k/a/ “Dule”, Case No. IT-94-1-T, Decision on the Defence Motion on the Principle of Non-Bis-in-Idem, 14 November 1995 (“Tadić Decision”), para. 9 (“Whether characterized as non-bis-in-idem, double jeopardy or autrefois acquit, autrefois convict, this principle normally protects a person from being tried twice or punished twice for the same acts.”) (emphasis added). Cf. The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-2000-55A-AR73, Decision on the Prosecutor’s Appeal concerning the Scope of Evidence to be Adduced in the Retrial, 24 March 2009 (“Muvunyi Decision”), para. 16 (referring to Article 14(7) of the International Covenant on Civil and Political Rights) (“The non bis in idem principle aims to protect a person who has been finally convicted or acquitted from being tried for the same offence again”) (emphasis added).